The Provisional Waiver

March 4, 2013 marked the first day that immigrant visa applicants could file
provisional waivers for unlawful presence. Under the prior procedure, individuals had to leave
the U.S. before applying for the waiver, thus living abroad (and likely
apart) from U.S. citizen family. If those previous statements make sense
to you, you have probably already done your celebratory dance for this
significant step forward in U.S. immigration procedures. If that statement
made you turn your face in confusion, you are not alone, but after reading
more you may realize that you too have reason to celebrate. Although the
process just started in March, and we are waiting to see how the system
is fully implemented, there is cause for optimism. Ready for a ride through
the whirlwind of waivers? Ready.

The new procedure affects certain individuals who are subject to three-
and ten-year bars to admission into the U.S. for having unlawful presence
in the U.S. (for example, after entering without a visa). Let me break
that down. A person can begin accruing unlawful presence in the U.S. by
a variety of ways, but the most common are by entering without a valid
visa or by violating the terms of an existing valid visa stay in the U.S.
If a person has accrued enough unlawful presence in the U.S. because,
for example, he entered without a visa, then as soon as he departs the
U.S. he will automatically trigger a penalty (three or ten years) to returning
to the U.S. The length of penalty depends on the length of unlawful presence
in the U.S. If a person has over 180 days but less than one year of unlawful
presence, he is subject to a three-year bar to reentry. If a person has
over one year or more of unlawful presence, he triggers a ten-year penalty.
Still with me? Good.

Immigration law allows for waivers of those penalties, commonly called
“hardship waivers.” The term “hardship waiver”
stems from the standard for approving the waivers. To get the waiver of
the unlawful presence penalty approved, the applicant must show that he
has a U.S. citizen or lawful permanent resident (a.k.a. “green card
holder”) spouse or parent who will suffer “extreme hardship”
if the waiver is denied. (Notably, children cannot be the qualifying relative
for an unlawful presence waiver.) Essentially, the applicant will need
to show that if he is denied admission to the U.S., the citizen or resident
spouse or parent will suffer extreme hardship if he or she is 1) forced
to live apart from the applicant and 2) forced to live abroad to remain
united with the applicant. What is extreme hardship? In short, it is something
beyond ordinary. This of course begs the question, what is ordinary about
the consequences of forcing spouses to live apart?

Under the previous procedure, a person who could not apply for a green
card in the U.S. (for example, through marriage to a U.S. citizen) and
was subject to an unlawful presence bar would 1) leave the U.S. for the
interview; 2) trigger the penalty upon departure; 3) attend the visa interview
abroad; 4) file the waiver at, or after, the interview; 5) wait for a
decision on the waiver while abroad; 6) wait some more; and 7) remain
outside of the U.S. until a decision was made. Of course, only if the
waiver was approved (effectively waiving the penalty) could the individual
then receive the visa and return. If the waiver was not granted, the applicant
was denied the visa and was then stuck with essentially three options:
1) file a new waiver (more time and money); 2) appeal (more money and
T-I-M-E, to state it mildly, considering that up until very recently,
appeals were taking around twenty-six months); or the utterly undesirable
option to 3) wait abroad for the penalty to run. All the while, spouses
were forced to live apart, children were separated from parents, and U.S.
citizens were forced to live abroad, severing ties to family, home, and
employment and all other opportunities and resources in the U.S.

Although under the new provisional waiver procedures individuals will still
have to depart for the interview, the integral change will now allow applicants
to file for the waiver
before leaving for the interview. Therefore, families will remain together in
the U.S. while the waiver is decided. With the new process, the agency
implemented a change to alleviate the burdensome and lengthy separation
times that the old procedure forced on families. One must be eligible,
however, to file for the waiver. USCIS has a helpful site explaining the
eligibility requirements and filing process. Note, among the requirements, provisional waivers are only for the three-
and ten-year unlawful presence bars; they will not waive other inadmissibility
grounds (such as criminal and misrepresentation bars). That is why the
waiver is called “provisional.” It only applies to the unlawful
presence bars. The waiver’s approval does not preclude a denial
should the consulate officer conclude that the applicant is inadmissible
on another ground. In addition to reading the USCIS link, I suggest that
a potential applicant consult with an experienced immigration attorney
(private/nonprofit) to review eligibility for the provisional waiver process,
determine the strength of the waiver case, and provide guidance in developing
the hardship factors. Since the provisional waiver process is only getting
started, it will be important to learn from an experienced practitioner
exactly how the process is being implemented.

While the provisional waiver is a far cry from much needed immigration
reform, it is certainly a step in the right direction. As an
immigration attorney, I have known dozens of clients who have suffered through the forced separation
that the consulate process and unlawful presence penalties induce. I have
seen U.S. citizens lose homes and jobs because of the financial and emotional
strain of separation while waivers were pending. Homes were foreclosed
on; bankruptcies were filed; educational opportunities were lost. Citizens
had children without their spouses at their side, and citizens were unable
to witness births because they had to stay in the U.S., maintain a job,
and keep the family (at home and abroad) afloat. Husbands suffered through
sleepless nights. Mothers’ tender touches were felt only through
Skype. Children’s hands reached out for absent parents in the night.

What I have witnessed is just a fraction of the total impact that the waiver
bars and separation have caused, but I have no doubt my cases are an all
too accurate sampling of the greater harm that those penalties have generated.
That is why the provisional waiver will be a very welcome change. While
consular processing with a waiver is a wild and difficult ride, I can
acknowledge the good that also results (although, of course, the government
certainly makes you earn it). The approval brings a life-altering swing
in status from “unlawful” and unwanted to that of lawful permanent
resident with rights and privileges in the U.S.

Thank you for joining me on this ride through the provisional waiver. I
look forward to more developments and improvements to our immigration
system as both sides cross the aisle to meet somewhere in the middle.
More changes are needed to fix our broken immigration system, but as an
attorney who has witnessed the suffering of far too many families, I admit
I did a little dance when I learned that certain people (yes, they are
people) could stay together while the waiver was adjudicated. These will
be interesting times, to say the least (and the obvious). March 4th marked
the beginning for provisional waivers. It got us off on the right foot
in 2013, hopefully setting the tone for greater reform to come. Looking
forward to having you join me on the ride again soon.

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Anonymous

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